Abstract

Footnotes (107)

Using the URL or DOI link below will
ensure access to this page indefinitely

Based on your IP address, your paper is being delivered by:

New York, USA

Processing request.

Illinois, USA

Processing request.

Brussels, Belgium

Processing request.

Seoul, Korea

Processing request.

California, USA

Processing request.

If you have any problems downloading this paper,please click on another Download Location above, or view our FAQFile name: SSRN-id998601. ; Size: 318K

You will receive a perfect bound, 8.5 x 11 inch, black and white printed copy of this PDF document with a glossy color cover. Currently shipping to U.S. addresses only. Your order will ship within 3 business days. For more details, view our FAQ.

Quantity:Total Price = $9.99 plus shipping (U.S. Only)

If you have any problems with this purchase, please contact us for assistance by email: Support@SSRN.com or by phone: 877-SSRNHelp (877 777 6435) in the United States, or +1 585 442 8170 outside of the United States. We are open Monday through Friday between the hours of 8:30AM and 6:00PM, United States Eastern.

Holmes on Emergencies

Justice Holmes's judicial and extrajudicial writings implicitly suggest a coherent account of emergencies, law, and constitutional adjudication. I will call this account the epistemic theory of emergencies. Its main elements are that (1) the existence and duration of an emergency are questions of fact; (2) during emergencies courts should not practice judicial minimalism or the passive virtues; (3) during emergencies there are no non-derogable rights - government can do anything if circumstances warrant; (4) the main checks on governmental action during emergencies are that (a) legislative limitation of executive powers trumps, where the political branches disagree; and (b) judges engage in ex post sunsetting, once an emergency has in fact ended, by declaring the emergency terminated and rescinding the government's emergency powers. I then offer a broader evaluation of Holmes's views, suggesting that the epistemic theory of emergencies is the best version of a common-law strategy for regulating government action during emergencies. Throughout, the enterprise is not biographical, historical or doctrinal; it is theoretical.